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CASE NO.: Special Leave Petition (civil)  21390-21442 of 2003

PETITIONER: Medical Council of India

RESPONDENT: Rajiv Gandhi University of Health Sciences & Ors.

DATE OF JUDGMENT: 12/04/2004

BENCH: S. RAJENDRA BABU , DR. AR. LAKSHMANAN & G.P. MATHUR.

JUDGMENT: JUDGMENT

RJAENDRA BABU,  J.  :

[with S.L.P. Nos. 21464-21552/2003 &  20385/2003]

SPECIAL LEAVE PETITIONS (C) NOS. 21390- 21442 OF 2003, SPECIAL LEAVE PETITIONS Nos.  21464-21552/2003

               A writ petition bearing No. 39772/2002 is  filed before the High Court of Karnataka for a  direction that the Union of India should be directed  to grant renewal of permission to the institution run  by the first and second respondents.  They also  sought for direction to make selection for  admissions into the institution for the academic  session 2002-03 and to allocate students to enable  continuation of imparting education in the said  institution.    

A permission has been granted to the first  and second respondent’s institution in terms of  Section 10-A of the  Medical Council Act and also  renewed for the subsequent year.   As it was not  renewed in time for the academic year 2002-03,  they filed writ petition No. 39772/2002.   The High  Court by an interim order dated 4.11.2002  directed the Medical Council of India (for short  ’Council’) to complete the inspection by  11.11.2002 and send a report/recommendation  immediately to the Central Government for  passing appropriate orders.  In pursuance of the  above said order,  the Council had sent its report  to the Central Government on 11.11.2002.   However,   till 15.11.2002,  no order had been  made by the Central Government. As the renewal  for permission was not granted to the institution  concerned, MBBS seats of the institution were not  included in the seat matrix which had to end on  15.11.2002 and, therefore,  in the absence of the  institution not being notified no admission had  been done.  Having regard to the fact that the  permission had been granted earlier and renewed  for the previous years,  the Council had also sent  a report regarding renewal for the current year,  

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but unfortunately, the Central Government did not  act with necessary expedition as was needed in  the said case.   As the counselling of Common  Entrance Test  is coming to end on 15.11.2002  and even if renewal was granted by the Central  Government after that date,  100 seats would go  waste.  The High Court, by an order made on  15.11.2002,  directed the Government to include  the seats of the respondent’s institution in the  seat matrix to allocate the same to the deserving  students in accordance with rules.   By another  order made on 03.12.2002, after adverting to the  decision of this Court in Union of India   vs.  Era  Educational Trust & Anr.,   2000 (5) SCC 57,  the learned single Judge of the High Court passed  further orders imposing conditions to the   following  effect :-   i)      The Central Government on consideration of  the recommendations of the Medical Council of  India would grant the renewal of permission if  the petitioner-institution satisfies all the legal  requirements within seven days from the date  of receipt of such recommendations. ii)     Pending receipt of such permission being  granted, the 4th respondent-State Government  is directed to issue seat matrix for 50 seats for  the petitioner-institution for the academic year  2002-2003 forthwith. iii)    The 5th respondent CET Cell shall issue  necessary advertisement and complete the  counselling and allot 50 seats included in the  seat matrix to the eligible students on or  before 20th of December, 2002 iv)     As the students are admitted to the college in  pursuance of the interim order passed by this  Court,  even before the permission is granted  by the Central Government,  it is made clear  that this will not give any right to the students  or the college to claim credit for the classes  conducted after the commencement of the  course till the permission from the Central  Government under Section 10-A is accorded. v)      Students are not entitled to appear in any  examination until they complete the prescribed  minimum period of studies after the permission  is granted under Section 10-A  vi)     No further admission would be made to the  first batch of MBBS course of the petitioner  institution except on vacancies arising from  any of the students now allotted or refusing to  pursue their studies. vii)    If any student who has been admitted to the  petitioner college refused to join the course,   the petitioner college shall duly intimate the  5th respondent-CET Cell and after confirming  the same,  is at liberty to admit the students to  those vacancies.   Admission for such  vacancies shall be filled up on or before 23rd  December, 2002. viii)   In the event of the petitioner failing to obtain  the necessary permission from the Central  Government under Section 10-A, this order will  not aid any equities in favour of the petitioner  institution or those students who have been  admitted in pursuance to the interim order

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passed by this Court. ix)     In the event of the Central Government  declining to grant permission under Section  10-A, the petitioner institution shall refund to  the students admitted in pursuance of this  order,  the entire fee collected by them  and  similarly the students shall not claim any right  to pursue the studies in the even of refusal of  such permission.   The petitioner institution  shall file an undertaking to this effect before  10.12.2002, and all the students who are to be  admitted in pursuance of the interim order also  shall given an undertaking to the CET Cell  before collecting the admission order. x)      In so far as the payment of fee is concerned,   the students shall pay the fee as prescribed by  the Government to the free seats,  payment  seats and the fee payable by the student is  subject to the same being worked out in terms  of eleven member judgment of the Supreme  Court in T.M.A. Pai’’ case. xi)     The petitioner institution shall on production of  the admission order issued by the CET Cell  shall admit the students without raising any  objections. xii)    It is made clear that having regard to the  exceptional circumstances  this order is passed  and it is further made clear that it shall not be  precedent to any institution approaching this  Court. xiii)   The Central Government is directed to consider  the request of the petitioner for renewal of the  permission which is pending before them  within fifteen days from today.

Copy of this interim order shall be handed over to the  learned counsel appearing for all the parties  forthwith."

As a consequence of this order having been made,   some of the students  on not being permitted to  take first year examination scheduled to be held in  the month of September, 2003 they filed writ  petitions before the High Court. The High Court, by  an order made on 28.08.2003, directed that they  may be permitted to take the examinations for the  first year MBBS scheduled to commence in the  month of September, 2003 by accepting the  examination fee tendered by them on or before  29.08.2003 or such other date as the University  may fix subject to the result of the said writ petition.   As against that order writ appeals were filed before  the High Court.   The Division Bench of the High  Court in W.A. No. 6568-6619/03 and W.A. 6791/03,  pending the admission of the appeal, granted an  interim relief. The High Court noted that it could not  allow the concerned institutions to perpetuate the  illegality, but in the circumstances of the case,  declined to interfere with the order of the learned  Single Judge permitting the students to appear for  the examination, which was scheduled to be held  from September 23, 2003 without making the  decision of the learned Single Judge a precedent.   

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It is against this order dated 22.09.2003 passed in  the writ appeals these petitions have been filed.

               Inasmuch as the Council has not challenged  the orders of the High Court by which students were  admitted and to which we have adverted to earlier  and these matters are still pending before the High  Court for final consideration, we do not think, this is  a fit case in which we should interfere.    

We once again emphasis that the law declared  by this Court in Union of India vs. Era  Educational Trust & Anr. (supra) that interim  order should not be granted as a matter of course,  particularly in relation to matter where standards of  institutions are involved and the permission to be  granted to such institutions is subject to certain  provisions of law and regulations applicable to the  same,  unless the same are complied with.  Even if  the High Court gives certain directions in relation to  consideration of the applications filed by concerned  educational institutions for grant of permission or  manner in which the same should be processed  should not form a basis to direct the admission of  students in these institutions which are yet to get  approval from the concerned authorities or  permission has not been granted by the Council.    

Now, in the present case such orders have led  to a stage on which the examination was to take  place and students have appeared in such  examination and matters are still pending final  consideration by the High Court, we do not think it  necessary to say anything further in this matter.

               The petitions shall stand disposed of subject  to the observations made by us.

SPECIAL LEAVE PETITION (C) No. 20385/2003

Respondent No. 1 had established a Medical  College and hospital, respondent No. 2.  The  college was granted permission as provided under  Section 10-A of the Medical Council Act for the  academic year 2001-02 to enable the college to  make admissions of first batch of students in the  first year of the MBBS.   However,  on 4th  and 5th   June, 2002 the Inspectors of the Council conducted  an inspection of the respondent college for the  purpose of renewal of permission for the academic  year 2002-03.  On account of certain deficiencies  the respondent college was not granted renewal of  permission for admission of 2nd batch of students  of the college for the academic session 2002-03.    The inspection report of 4th and 5th June 2002 was  considered by the Executive Committee of the  Council in its meeting held on 24.6.2002 and due  communication thereof was made to the  respondents.   On 2.7.2002,  respondent Nos. 1  and 2 made a communication stating that they  have complied with the deficiencies pointed out in  the inspection report.  By a communication dated  22.08.2002 the compliance report sent by  respondents Nos. 1 and 2 was disputed by the  Council.  Another inspection for compliance

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verification was carried out by the Council on 11th  and 12th October, 2002 and deficiencies found in  the said inspection report the Executive Committee  of the Council which met on 31.10.2002 did not  recommend renewal of permission for admission of  2nd batch of MBBS students.   A communication  dated 5.11.2002 was sent to this effect which also  indicated the deficiencies pointed out in the  inspection report.  The respondents were also  advised by a communication sent on 6.11.2002 not  to admit fresh batch of students till the deficiencies  are rectified.   

               A writ petition No. 42277/2002 was filed in  the High Court praying for a direction that the  petitioners herein be directed to grant renewal of  permission for admission for the academic session of  2002-03 and that writ petition is still pending  adjudication before the High Court.

       On 3.12.2002 a learned Single Judge of the  High Court directed inclusion of the annual intake  capacity of the respondent college for the grant of  admissions to the first year of the MBBS course  through CET for the year 2002-03.   The learned  Single Judge after adverting to the decision of this  Court in Union of India   vs.  Era Educational  Trust & Anr.  (supra) made an order granting  permission for admission to the second batch of  students in the 1st year of the MBBS course;  stipulating that in the event the Government of  India declined to grant permission in terms of  Section 10-A of the Medical Council Act,  the  students should not claim equities to pursue further  studies and students who wanted to be admitted in  such colleges also had to give an undertaking to this  effect.  The learned Single Judge also granted an  interim order staying the operation of the  communication of the Government of India dated  6.12.2002 and the matter was carried in appeal  before the Division Bench of the High Court in Writ  Appeal No. 1603/2003.   However,  the writ appeal  filed by the Council challenging the orders dated  3.12.2002 and 4.12.2002 passed in the writ  petitions referred to earlier was dismissed as having  become infructuous on the ground of subsequent  interim orders having been passed by the learned  Single Judge.   

       When the matter stood thus,  even in terms  of the order made by the learned Single Judge on  3.12.2002 in Writ Petition no. 42277/2002, the  requirements having not been fulfilled in terms of  the Medical Council Act, the college should have  discharged the students admitted for the academic  session 2002-03 in terms of the orders of the High  Court itself as the Central Government has not as  yet granted permission to the respondent college  renewing permission admitting the students.   But  that part of the matter is not before us.  What is  pointed out now is that when the respondent college  sought for renewal of permission for the subsequent  year 2003-04; that when the said college was not  entitled even for admission for the academic session  2002-03, the High Court granted identical orders;

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that when the issue of admissions of students for   the academic session 2002-03 was still pending to  be decided; that according to the Council such  admissions are contrary to law; that in terms of  direction issued in the interim order dated  3.12.2002 the students have to be discharged and  the Government of India had passed an order on  13.6.2003 declining permission to the respondent  college, another interim order should not have been  passed on 12.09.2003 directing admissions of  another batch of students for the academic session  2003-04 once again completely disregarding the  provisions of the Act  and regulations made  thereunder and the decisions of this Court.   

       Aggrieved by the order made on 12.09.2003  by the learned Single Judge in identical terms that  had been done on previous occasion  in Writ Petition  42277/2002 the petitioners preferred a writ appeal  No. 33442-32443/2003 which was dismissed by the  Division Bench of the High Court.  The High Court  while dismissing the said writ appeal noticed as  follows :-

"We find that the first respondent has been  permitted by the Government of India to  establish a new college on 18.5.2001 and the  college is running and admissions have been  made for 2001-2002 and 2002-2003.  We also  find that the terms under which learned Single  Judge has granted interim relief is practically in  terms of the conditions imposed by the  Supreme Court in para 11 of the decision in  Union of India   v.  Era Medical Educational  Trust & Anr.   2002 (5) SCC 57.   We find that  learned Single Judge has also taken care to  ensure that no equities can be claimed in the  event of college not getting renewal for the  year 2003-2004.  In view of the submissions  made by learned counsel for the Medical  Council of India,  the counsel for the  institutions/medical college submitted that any  other reasonable further condition may be  imposed to safeguard the students who may  be admitted."

       Thereafter,  the High Court continued the order  adding further conditions.   

       There is serious dispute between the parties  as to what are the requirements to be fulfilled to  get necessary permission.  Whether majority of the  requirements have already been fulfilled or not;  whether all the primary conditions that have been  provided have been fulfilled or not; whether non- fulfilment of certain other requirements which are  of minor character should not come in the way of  grant of permission, are all such matters to be  decided in the course of the writ proceedings before  the High Court rather than in these proceedings.    Therefore, we do not wish to enter upon the  controversy in this regard at this stage.   

       Law is well settled that Section 10-A of the

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Medical Council Act which provides for terms and  conditions have to be fulfilled before starting or  establishing a medical college or starting higher  courses making it clear that what is postulated  thereunder is evaluation of application made by the  institution concerned by the Central Government in  the first instance and then forwarding the same to  the Medical Council of India for its further  examination.  There are various steps envisaged  under the Scheme such as (a)  issuance of letter of  intent by the Central Government on the  recommendation of the Council;  (b)  issuance of  letter of permission by the Central Government on  the recommendation of the Council for starting  admissions;   (c )   issuance of annual renewal to  be granted by the Central Government on the  recommendation of the Council;  (d)  at the stage  of 1st batch of students admitted in MBBS course go  for final year examination, grant of formal  recognition by the Central Government on the  recommendation of the Council;  (e)  if at any stage  after the grant of initial permission entitling  permission of 1st batch of students any college fails  to fulfil the minimum norms in any successive year,    as per the statutory regulations,  further  admissions are liable to be stopped at any stage.  

       In the normal circumstances, the High Court  ought not to issue an interim order when for the  earlier year itself permission had not been granted  by the Council.  Indeed,  by grant of such interim  orders students who have been admitted in such  institutions would be put to serious jeopardy, apart  from the fact that whether such institutions could  run the medical college without following the law.   Therefore,  we make it clear that the High Court  ought not to grant such interim orders in any of the  cases where the Council has not granted permission  in terms of Section 10-A of the Medical Council Act.   If interim orders are granted to those institutions  which have been established without fulfilling the  prescribed conditions to admit students, it will lead  to serious jeopardy to the students admitted in  these institutions.   

       Arguments have been advanced before us  that there should be transparency in the matter of  granting permission by the Central Government and  Medical Council of India for starting or continuing  colleges; that the Council has to objectively look at  the matters in the matter of grant of permission  and not withholding the same on unnecessary or  flimsy reasons; that the Council should also bear in  mind that when an institution has been established  and initial permission has been granted and  thereafter large expenditure has been incurred by  such institution,  the same should not be allowed to  be withered away; that the Council should be  helpful for starting and establishing medical  colleges which are absolutely needed in this country  and their attitude should be positve and not  negative.   

       It is unnecessary for us to examine all these  aspects in the present case because these matters

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arise out of interim orders passed by the High  Court.  All that we need to emphasise in the  present proceedings is that the High Courts should  be very cautious in the matter of issuing interim  orders in such matters.  If for one year students are  not admitted and writ petitions seeking for grant of  permission or renewal are considered by the High  Courts quickly and appropriate directions are issued  to the Council by the High Courts to process such  applications and decision to give or refuse  permission to continue such institutions should be  taken finally and it is only thereafter  if further  difficulties arise,  the same could be sorted out and  not to grant permission to the colleges year after  year when only initial permission has been granted  to such educational institutions.    

       Subject to these observations, these petitions  stand disposed of.  

               We direct that the observations made by us  shall be communicated to all the High Courts to be  placed before the concerned Hon’ble Judges to take  note of the same.    

               The special leave petitions stand disposed of  accordingly.